THIS
MATTER comes before the Court following a bench trial held on
January 28, 2019. The parties consented to trial before a
United States Magistrate Judge. See Notice, Consent,
and Reference of a Civil Action to a Magistrate Judge (DE#
30, 2/1/17). This matter was referred to the undersigned by
the Honorable Federico A. Moreno in accordance with 28 U.S.C.
§ 636(b). See Order of Reassignment to
Magistrate Judge O'Sullivan (DE# 31, 2/8/17). The Court
has carefully reviewed the testimony and exhibits presented
at the bench trial and makes the following findings of fact
and conclusions of law as required by Rule 52(a) of the
Federal Rules of Civil Procedure.

The
Court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 because this case involves a claim under Title
III of the Americans with Disabilities Act of 1990, 42 U.S.C.
§ 12101, et seq. (hereinafter "ADA").

B.
Parties

GARY
KAHN (hereinafter "plaintiff") has multiple
sclerosis, a qualifying disability under the ADA. He requires
the use of a motorized wheelchair.

CLEVELAND
CLINIC FLORIDA HEALTH SYSTEM NONPROFIT CORPORATION
(hereinafter "defendant") is a non-profit Florida
corporation. The defendant is the owner/operator of CLEVELAND
CLINIC FLORIDA-WESTON (hereinafter "CLEVELAND
CLINIC"), a medical building and related medical
facilities in Weston, Florida. CLEVELAND CLINIC, except for
areas not accessible to the public, is a place of public
accommodation within the meaning of the ADA, 42 U.S.C. §
12181(7)(F).

C.
Procedural Background

1.
Complaint and Amended Complaint

On
August 18, 2016, the plaintiff filed the instant action
against the defendant alleging a negligence claim (Count I)
and an ADA claim (Count II). See Complaint for
Damages and Injunctive Relief (DE# 1, 8/18/16) (hereinafter
"Complaint"). The Complaint alleged, in part, that:

b. There was inadequate clear turning space
in violation of section 603.2.1 of the 2010 ADA AG
regulations and in violation of section 4.17.3 of the Uniform
Federal Accessibility Standards. Defendant improperly used
the handicapped accessible bathroom as a storage area for
receptacles holding soiled linen. This made it difficult for
Plaintiff to safely utilize the restroom facilities.

***

e. Restrooms in the Facility have lavatories with
inadequate knee and toe clearance in violation of
section 306 of the 2010 ADAAG regulations and in violation of
section 4.19.2 of the Uniform Federal Accessibility
Standards. This made it difficult for Plaintiff to safely
utilize the restroom facilities.

53. The Defendant did not have adequate policies,
practices and/or procedures in place to prevent harm to
people with disabilities, and in fact had
implemented a policy and procedure which called for the use
of the ADA bathrooms as changing rooms and for the storage of
soiled and contaminated linen in free standing bins.

Id. at ¶ 53 (emphasis added).

2.
Jury Trial

The
Court bifurcated the plaintiff's negligence claim and ADA
claim. The Court presided over a jury trial on the negligence
claim from January 8 through January 11, 2018. On January 12,
2018, the jury rendered a verdict in favor of the defendant
and against the plaintiff on the negligence claim.
See Verdict (DE# 160, 1/12/18).

3.
Narrowing of the Plaintiffs ADA Claim

On June
6, 2018, the defendant filed Defendant's Motion
Concerning Award of Attorneys' Fees (DE# 198, 6/6/18)
seeking to dismiss the plaintiff's ADA claim based on
mootness. Specifically, the defendant argued that the ADA
claim was moot because: (1) the defendant had removed the
accessible restroom designation from some of its restrooms;
(2) the defendant had made structural changes to its
remaining accessible restrooms and (3) moveable objects such
as linen bins and trash bins were not ADA barriers and, in
any event, the plaintiff's claim was moot because the
defendant had removed the linen bins and trash bins from the
accessible restrooms. Id. at 2-3, 7.

On
October 29, 2018, the Court issued an Order which granted in
part and denied in part the defendant's motion. See Order
(DE# 207, 10/29/18). "The Court conclude[d] that with
respect to the barriers addressed by the defendant's
structural changes to the facility, the plaintiff's ADA
claim [was] moot. [However, t]he plaintiff's ADA claim
[was] not moot with respect to the use of trash bins and
linen bins which purportedly encroach over the clear floor
space of accessible restrooms." Id., at
30.[3]
The plaintiff's expert also found trash bins which
encroached over the maneuvering clearance on the pull side of
the door in some accessible restrooms in violation of the
ADA. See Exhibit 222, 220.

4.
Bench Trial

On
January 28, 2019, the Court presided over a bench trial on
the plaintiff's ADA claim. See Trial Transcript (DE# 242,
2/19/19).[4]

The
plaintiff's ADA expert Carlos Herrera, the
defendant's ADA expert Jeffrey Gross and the Clinical
Manager of the MRI/Radiology Department, Natalie Haaf,
testified in person at the bench trial. The plaintiff played
a videotape of a new deposition of the plaintiff and the
parties read from designated portions of the jury trial
transcripts and/or deposition transcripts of the plaintiff,
Natalie Haaf, Mercedes Varela, Lee Ghezzi, Kerry Ninkovich,
Luz Warford and William Norkunas.

D.
Plaintiff's Fall

On July
10, 2015, the plaintiff visited CLEVELAND CLINIC for an MRI.
The plaintiff was accompanied by his aide, Laurie Denis. Ms.
Denis is also the plaintiff's fiancee. Ms. Denis assists
the plaintiff with many activities of daily living, including
toileting.

The
plaintiff asked to use the restroom. An employee of CLEVELAND
CLINIC led the plaintiff and Ms. Denis to an accessible
restroom (hereinafter "Subject Restroom" or
"WHN1-231") in the MRI/Radiology Department.

When
the plaintiff entered the Subject Restroom (WHN1-231), he
encountered three bins: (1) a red bin for holding
biohazardous waste (hereinafter "red
bin");[5] a blue bin for soiled laundry (hereinafter
"linen bin") and (3) a bin for trash (hereinafter
"trash bin").[6] The linen bin and trash bin were free
standing bins which measured approximately three feet in
height.

The red
bin[7]
and the linen bin were next to each other, to the right side
of the restroom, against the wall. The trash bin was by the
sink, beneath the paper towel dispenser.[8] The trash bin was
blocking part or half of the sink.

The
plaintiff suffered a fall inside the Subject Restroom
(WHN1-231). The jury determined that the defendant was not
the legal cause of this fall. See Verdict (DE# 160,
1/12/18). Prior to the plaintiff's fall, the defendant
had never received a complaint about the accessible restrooms
at CLEVELAND CLINIC.

E.
Environmental Services

1.
Policies and Procedures

The
defendant had a standard operating procedure (hereinafter
"SOP") for cleaning the restrooms at CLEVELAND
CLINIC. See Cleveland Clinic Environmental Services
Restroom Cleaning Standard Operating Procedure, Exhibit 60.
The SOP listed the job duties of cleaning staff and
"provide[d] a step-by-step daily cleaning process for
public restrooms." Id. at 2. The first step was
for cleaning staff to "[p]erform hand hygiene and don
gloves." Id. Cleaning staff wore gloves when
cleaning the restrooms to protect themselves from disease.
The SOP instructed cleaning staff to "[e]mpty all waste
receptacles and place trash in [a] cart." Id.
The SOP did not provide any instruction on the placement of
trash bins in any specific location in the accessible
restrooms.

The
defendant also had policies for handling cleaned linen and
soiled linen. See Exhibit 59. One of the policies
stated that: "Personnel should wear gloves and other
[personal protective equipment][9] and follow Standard Precautions
when handling any contaminated or soiled linen."
Id. at 2 (footnote added; capitalization in
original). The policies did not address the placement of
linen bins in any specific location in the accessible
restrooms.

2.
Practice of Keeping Linen Bins in the Accessible
Restrooms

The
defendant had a long-standing practice of allowing patients
to use the accessible restrooms to change into or out of
their hospital gowns. Lee Ghezzi, the former Risk Manager,
did not know who approved the practice, but believed it began
when the restrooms were constructed.

Not all
patients used the accessible restrooms as changing rooms.
However, some patients did. Those patients would sometimes
throw the hospital gowns in the trash bin and it would cost
the defendant money to replace the gowns.

As a
cost-saving measure, the defendant adopted the practice of
keeping linen bins inside the accessible restrooms at
CLEVELAND CLINIC. Patients who used the accessible restrooms
as changing rooms could then place the soiled hospital gowns
in the linen bins. The hospital gowns could then be picked
up, laundered and reused.

Natalie
Haaf, the Clinical Manager of the MRI/Radiology Department,
did not know if CLEVELAND CLINIC had a written policy or
procedure pertaining to the placement of linen bins in the
accessible restrooms or when the practice began. She believed
the linen bins had been in the accessible restrooms for
"quite a few years."

3.
Placement of Bins in Specific Locations in the Accessible
Restrooms

a.
Linen Bins

Kerry
Ninkovich, the Director of Environmental Services,
communicated with the cleaning staff concerning the placement
of the linen bins and trash bins in the restrooms. In the
Subject Restroom (WHN1-231), the cleaning staff was supposed
to place the linen bin against the wall on the right-hand
side. Melissa Cassamajor, a CLEVELAND CLINIC employee,
testified that the linen bin was usually placed in the corner
of that wall and the trash bin would be placed next to it.

Natalie
Haaf s office was located across the hall from the Subject
Restroom (WHN1-231). She used the Subject Restroom (WHIM
1-231) on a regular basis for approximately eight or nine
years. Ms. Haaf testified that in the Subject Restroom
(WHN1-231), the linen bin was kept in the corner of the room
on the right-hand side and that the trash bin was located
beside the linen bin. See Trial Transcript (DE# 242
at 189, 2/19/19).[10] Ms. Haaf testified that the linen bin
and trash bin had always been in this location in the Subject
Restroom (WHN1-231). Id.

The
plaintiff's expert, Carlos Herrera, found that when the
linen bin was placed in the corner and the trash bin was
placed next to it in the Subject Restroom (WHN1-231) (the
location where Ms. Haaf testified it was "always"
kept), the trash bin would encroach over the maneuvering
clearance on the pull side of the door in violation of the
ADA. See February 26, 2018 Expert Report, Exhibit 222 at 2;
Exhibit 162 at Photograph 5. In another accessible restroom
(WNH1-205A), Mr. Herrera found that when the linen bin was
placed in the corner against the wall, it encroached over the
seat cover dispenser in violation of the ADA. Exhibit 222 at
4; Exhibit 162 at Photograph 44. In a third accessible
restroom (WNH1-207A), [11] Mr. Herrera found that when the linen
bin was placed in the corner against the wall, it encroached
over the seat cover dispenser in violation of the ADA.
Exhibit 222 at 5; Exhibit 162 at Photograph 65. Thus, the
defendant's practice of keeping linen bins inside the
accessible restrooms and placing them in the corner against
the wall resulted in ADA violations in three accessible
restrooms.

After
Mr. Herrera's February 26, 2018 inspection, the defendant
removed the linen bins from the accessible restrooms in the
MRI/Radiology Department. When Mr. Herrera returned to the
facility on May 3, 2018, he did not find linen bins in the
accessible restrooms. The linen bins were still in the exam
rooms and in at least some non-accessible restrooms.
See Exhibit 163 at Photographs 11 and 108 (showing
linen bins in two non-accessible restrooms).

b.
Trash Bins

Kerry
Ninkovich testified that the placement of trash bins against
the far wall was a procedure, not a policy. As a matter of
procedure, trash bins were supposed to be placed against the
far wall, so they would not interfere with the toilet and
sink in the accessible restrooms. See Trial Transcript (DE#
242 at 169-70, 2/19/19) (Q. "What is the policy? Where
are they kept? ... A. "Wastebaskets are usually kept at
the opposite end so they don't interfere with either the
toilet or the sink. So it would be on the far wall, the far
wall from the fixtures."). Consistent with this
procedure, the trash bin in the Subject Restroom (WHN1-231)
was supposed to have been placed against the far wall.

Ms.
Haaf testified that the trash bins were put in the same place
(the far, right-hand corner) in other restrooms in the
radiology department. See Trial Transcript (DE# 242
at 219, 2/19/19). Ms. Haaf agreed that the trash bins were
placed in a location where they would not intrude upon the
sink, toilet and other features of the accessible restrooms.
Id. at 219-20.

Ms.
Haaf discussed the placement of the trash bins with Mr.
Ninkovich. According to Mr. Ninkovich, the people who
controlled the placement of the trash bins were the
employees. Mr. Ninkovich instructed his staff that they must
place the trash bins back in their place when they finished
cleaning the floors.

Mercedes
Varela worked at the CLEVELAND CLINIC for approximately five
years and was still employed there at the time of her
testimony. Ms. Varela was responsible for cleaning six
restrooms in the MRI/Radiology Department, including the
Subject Restroom (WHN1-231). Consistent with the procedure
described by Mr. Ninkovich and Ms. Haaf, Ms. Varela always
placed the linen bin and the trash bin against the far wall
on the right-hand side of Subject Restroom (WHN1-231). When
Ms. Varela cleaned the Subject Restroom (WHN1-231), she made
sure to leave the linen bin and trash bin in this position.
Ms. Varela never placed the trash bin beneath the paper towel
dispenser and she never saw the trash bin located beneath the
paper towel dispenser in the Subject Restroom (WHN1-231). Mr.
Ninkovich was not aware of any procedure where the trash bin
in the Subject Restroom (WHN 1-231) would have been placed
against the sink.

Luz
Warford was part of the cleaning staff at CLEVELAND CLINIC
for three years. Ms. Warford was responsible for cleaning and
inspecting the restrooms in the MRI/Radiology Department,
including the Subject Restroom (WHN1-231). When she cleaned
the Subject Restroom (WHN1-231), Ms. Warford always placed
the trash bin near the sink, beneath the paper towel
dispenser. Sometimes, Ms. Warford would return to clean the
Subject Restroom (WHN1-231) and the trash bin was not where
she had left it. Ms. Warford did not know who moved the trash
bin, but she would always return the trash bin to its
position beneath the paper towel dispenser.

On
approximately July 31, 2015, Ms. Warford was terminated. Ms.
Warford testified that she wanted to continue working at
CLEVELAND CLINIC, but Mr. Ninkovich told her she was being
terminated because she was a very good worker and that was
causing friction with her co-workers.[12]

Ms.
Warford signed an affidavit for the plaintiff in the instant
case because she was told, if she signed the affidavit, ...

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